Prof. Craig Barkacs Weighs in on Pregnancy Discrimination 27 Years After Prosecuting One of its First Cases

Monday, October 21, 2019TOPICS: Research

Associated Press News LogoUniversity of San Diego Professor of Business Law Craig Barkacs

Back in 1992, Professor of Business Law Craig Barkacs prosecuted one of the first cases of pregnancy discrimination. Now, he's providing expert commentary to the Associated Press on pregnancy discrimination today and whether it's as prevalent as it used to be. The topic has returned to the headlines as presidential candidate Elizabeth Warren recently claimed that she was forced out of a teaching position in 1971 after becoming pregnant.

The article has also been featured in numerous publications across the country including Seattle Times, U.S. News, The Washington Times, Yahoo News, and more.
 

Pregnancy Discrimination Continues, 41 Years After Ban

For 41 years, federal law has banned pregnancy discrimination in the workplace. But the stories tumbling out this week show it’s far from eradicated.

Prompted by presidential candidate Elizabeth Warren’s claim that she was forced out of a teaching job in 1971 because she was pregnant, scores of women have shared similar experiences on social media. Police officers, academics, fast food workers, lawyers, flight attendants, administrative assistants and others say they hid pregnancies on the job or during interviews, faced demeaning comments and were demoted or even fired after revealing a pregnancy.

When some raised doubts about Warren’s account — noting a 2007 interview in which she gave different reasons for leaving her job — women pushed back on Twitter and Facebook. Many say they accept Warren’s explanation that she has grown more comfortable since 2007 sharing the real reason she resigned from the school was because the principal hired someone else once Warren became visibly pregnant.

“Pregnancy discrimination is real, and I believe Elizabeth Warren,” tweeted Dr. Diane Horvath, an obstetrician and gynecologist who works at Whole Woman’s Health, a clinic in Baltimore.

Horvath didn’t even trust her own profession when she was interviewing for a family planning fellowship five years ago. She hid her pregnancy for 26 weeks during the application process, buying multiple suits to hide her growing belly.

“It was just the worry that I was going to be seen as less reliable because I was a parent,” Horvath told The Associated Press. “There’s no good time to have a baby.”

Horvath noted that she was privileged. She knew she could fall back on her medical degree if she didn’t get the fellowship. But many women aren’t so lucky.

“The stakes are so much higher if people can’t get a job that will pay their rent and keep their kids from starving,” she said.

Title VII of the 1964 Civil Rights Act prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. In 1978, it was amended to forbid discrimination based on pregnancy in any aspect of employment, including hiring, firing, pay and job assignments in companies with 15 or more employees.

The law is still evolving; on Tuesday, the U.S. Supreme Court was asked to decide if it also bans discrimination based on sexual orientation and transgender status.

Pregnant women have other protections on the job. Impairments from pregnancy, such as gestational diabetes, are considered disabilities covered by the Americans with Disabilities Act, and employers may have to offer accommodations for them.

But complaints about harassment and other violations are common. There were 2,790 cases alleging pregnancy discrimination filed with the U.S. Equal Employment Opportunity Commission in 2018. That doesn’t include cases filed with individual states, or cases that simply aren’t filed because proving discrimination can be tricky. Employers may rescind a promised job, for example, without specifying why.

“Employers have gotten much more discreet in acts of discrimination,” said Craig Barkacs, a law professor at the University of San Diego School of Business who successfully prosecuted one of the first cases of pregnancy discrimination in the U.S. in 1992.

Barkacs said the problem affects women broadly — even those who aren’t pregnant.

“At some psychological level, there’s a paradigm of what an efficient workplace is,” he said. “Women even potentially becoming pregnant disrupts that workflow.”

Barkacs thinks that’s changing. More men and partners of pregnant women are taking parental leave, following high-profile examples like Reddit co-founder Alexis Ohanian and Facebook CEO Mark Zuckerberg. That could make employers less likely to penalize pregnancy as a disruption ...

Contact:

Renata Ramirez
renataramirez@sandiego.edu
(619) 260-4658